The Inside-Out Constitution: Department of CommercevNew York

Abstract

The Court’s decisions in Trump v. Hawaii and Department of Commerce v. New York suggest an inside-out Constitution, with the Court treating the Constitution’s insiders in ways typically reserved for those outside of the scope of its full protection. The Census 2020 Case, in particular, highlights two important ways that the Court has constructed this inside-out Constitution. First, as discussed in greater detail in Part II, the decision offers a clear picture of how the Court has created almost insurmountable barriers for plaintiffs seeking to challenge White Supremacy through equal protection claims. The fate of the equal protection claim in the Census 2020 Case is a logical sequel to the fate of the First Amendment discrimination claim in the Muslim Exclusion Case, Trump v. Hawaii. Both cases illustrate the near-impossibility of vindicating claims of racial or religious animus against historically disadvantaged groups under existing constitutional antidiscrimination jurisprudence. The Department of Commerce v. New York case also illustrates how the substantive rights claims advanced by parties seeking redress for invidious racial discrimination by the government are increasingly vindicated, if they are vindicated at all, through procedural channels. But even when plaintiffs prevail in their procedural claims, as in the Census 2020 Case, the resulting remedies are no match for the underlying equality harms generated by the challenged policies. Racial animus is whitewashed. The Court never grapples with the identity-based dignity and status harms suffered by non-white plaintiffs as the result of challenged policies. As a practical matter, the Court’s failure to grapple with the equality concerns at stake result is procedural protections much narrower in scope than the underlying threats to equality require. Department of Commerce v. New York not only illustrates this point, but also provides a useful preview of how the Court will analyze the claims raised in Department of Homeland Security v. U.C. Regents.